AN ACT Relating to the
competitive bidding system; amending RCW 43.19.1911, 39.19.020, and 39.19.030;
and creating new sections.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec.
1. It is the intent of the
legislature to preserve the integrity of the competitive bidding system for
state contracts. This dictates that, after competitive bids have been opened,
the agency must award the contract to the responsible bidder who submitted the
lowest responsive bid and that only in limited compelling circumstances may the
agency reject all bids and cancel the solicitation. Further, after opening the
competitive bids, the agency may not reject all bids and enter into direct
negotiations with the bidders to complete the acquisition.
Sec. 2. RCW 43.19.1911 and 1989
c 431 s 60 are each amended to read as follows:
((When purchases are
made through competitive bidding, the contract shall be let to)) (1)
Preservation of the integrity of the competitive bid system dictates that after
competitive bids have been opened, award must be made to that responsible
bidder who submitted the lowest responsive bid pursuant to subsections (7) and
(9) of this section, unless there is a compelling reason to reject all bids and
cancel the solicitation.
(2) Every effort
shall be made to anticipate changes in a requirement before the date of opening
and to provide reasonable notice to all prospective bidders of any resulting
modification or cancellation. If, in the opinion of the purchasing agency,
division, or department head, it is not possible to provide reasonable notice,
the published date for receipt of bids may be postponed and all known bidders
notified. This will permit bidders to change their bids and prevent
unnecessary exposure of bid prices. In addition, every effort shall be made to
include realistic, achievable requirements in a solicitation.
(3) After the
opening of bids, a solicitation may not be canceled and resolicited solely
because of an increase in requirements for the items being acquired. Award may
be made on the initial solicitation and an increase in requirements may be
treated as a new acquisition.
(4) A solicitation
may be canceled and all bids rejected before award but after bid opening only
when, consistent with subsection (1) of this section, the purchasing agency,
division, or department head determines in writing that:
(a) Unavailable,
inadequate, ambiguous specifications, terms, conditions, or requirements were
cited in the solicitation;
(b) Specifications,
terms, conditions, or requirements have been revised;
(c) The supplies or
services being contracted for are no longer required;
(d) The solicitation
did not provide for consideration of all factors of cost to the agency;
(e) Bids received
indicate that the needs of the agency can be satisfied by a less expensive
article differing from that for which the bids were invited;
(f) All otherwise
acceptable bids received are at unreasonable prices or only one bid is received
and the agency cannot determine the reasonableness of the bid price;
(g) No responsive
bid has been received from a responsible bidder; or
(h) The bid process was
not fair or equitable.
(5) The agency,
division, or department head may not delegate his or her authority under this
section.
(6) After the
opening of bids, an agency may not reject all bids and enter into direct
negotiations to complete the planned acquisition. However, the agency can
enter into negotiations exclusively with the lowest responsible bidder in order
to determine if the lowest responsible bid may be improved. An agency shall
not use this negotiation opportunity to permit a bidder to change a
nonresponsive bid into a responsive bid.
(7) In determining
the lowest responsible bidder, ((subject to)) the agency shall
consider any preferences provided by law to Washington products and vendors
and to RCW 43.19.704, ((taking)) and further, may take into
consideration the quality of the articles proposed to be supplied, their
conformity with specifications, the purposes for which required, and the times
of delivery((: PROVIDED, That whenever there is reason to believe that the
lowest acceptable bid is not the best price obtainable, all bids may be
rejected and the division of purchasing may call for new bids or enter into
direct negotiations to achieve the best possible price)).
(8) Each bid
with the name of the bidder shall be entered of record and each record, with
the successful bid indicated, shall, after letting of the contract, be open to
public inspection.
(9) In
determining "lowest responsible bidder", in addition to price, the
following elements shall be given consideration:
(((1))) (a)
The ability, capacity, and skill of the bidder to perform the contract or
provide the service required;
(((2))) (b)
The character, integrity, reputation, judgment, experience, and efficiency of
the bidder;
(((3))) (c)
Whether the bidder can perform the contract within the time specified;
(((4))) (d)
The quality of performance of previous contracts or services;
(((5))) (e)
The previous and existing compliance by the bidder with laws relating to the
contract or services;
(((6))) (f)
Such other information as may be secured having a bearing on the decision to
award the contract: PROVIDED, That in considering bids for purchase,
manufacture, or lease, and in determining the "lowest responsible
bidder," whenever there is reason to believe that applying the "life
cycle costing" technique to bid evaluation would result in lowest total
cost to the state, first consideration shall be given by state purchasing
activities to the bid with the lowest life cycle cost which complies with specifications.
"Life cycle cost" means the total cost of an item to the state over
its estimated useful life, including costs of selection, acquisition,
operation, maintenance, and where applicable, disposal, as far as these costs
can reasonably be determined, minus the salvage value at the end of its
estimated useful life. The "estimated useful life" of an item means
the estimated time from the date of acquisition to the date of replacement or
disposal, determined in any reasonable manner. Nothing in this section shall
prohibit any state agency, department, board, commission, committee, or other
state-level entity from allowing for preferential purchase of products made
from recycled materials or products that may be recycled or reused.
NEW SECTION. Sec.
3. It is the intent of the
legislature to ensure that the counting of the dollar value of an agency's or
educational institution's expenditures to certified minority and women's
business enterprises meaningfully reflects the actual financial participation
of the certified businesses.
Sec. 4. RCW 39.19.020 and 1987 c
328 s 2 are each amended to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Advisory
committee" means the advisory committee on minority and women's business
enterprises.
(2) "Broker"
means a person that provides a bona fide service, such as professional,
technical, consultant, brokerage, or managerial services and assistance in the
procurement of essential personnel, facilities, equipment, materials, or
supplies required for performance of a contract.
(3)
"Director" means the director of the office of minority and women's
business enterprises.
(((3))) (4)
"Educational institutions" means the state universities, the regional
universities, The Evergreen State College, and the community colleges.
(((4))) (5)
"Goals" means annual overall agency goals, expressed as a percentage
of dollar volume, for participation by minority and women-owned and controlled
businesses and shall not be construed as a minimum goal for any particular
contract or for any particular geographical area. It is the intent of this
chapter that such overall agency goals shall be achievable and shall be met on
a contract-by-contract or class-of-contract basis.
(((5))) (6)
"Goods and/or services" includes professional services and all other
goods and services.
(((6))) (7)
"Office" means the office of minority and women's business
enterprises.
(((7))) (8)
"Person" includes one or more individuals, partnerships,
associations, organizations, corporations, cooperatives, legal representatives,
trustees and receivers, or any group of persons.
(((8))) (9)
"Procurement" means the purchase, lease, or rental of any goods or
services.
(((9))) (10)
"Public works" means all work, construction, highway and ferry
construction, alteration, repair, or improvement other than ordinary
maintenance, which a state agency or educational institution is authorized or required
by law to undertake.
(((10))) (11)
"State agency" includes the state of Washington and all agencies,
departments, offices, divisions, boards, commissions, and correctional and
other types of institutions.
Sec. 5. RCW 39.19.030 and 1989 c
175 s 85 are each amended to read as follows:
There is hereby created
the office of minority and women's business enterprises. The governor shall
appoint a director for the office, subject to confirmation by the senate. The
director may employ a deputy director and a confidential secretary, both of
which shall be exempt under chapter 41.06 RCW, and such staff as are necessary
to carry out the purposes of this chapter.
The office shall
consult with the minority and women's business enterprises advisory committee
to:
(1) Develop, plan, and
implement programs to provide an opportunity for participation by qualified
minority and women-owned and controlled businesses in public works and the
process by which goods and services are procured by state agencies and
educational institutions from the private sector;
(2) Develop a
comprehensive plan insuring that qualified minority and women-owned and
controlled businesses are provided an opportunity to participate in public
contracts for public works and goods and services;
(3) Identify barriers
to equal participation by qualified minority and women-owned and controlled
businesses in all state agency and educational institution contracts;
(4) Establish annual
overall goals for participation by qualified minority and women-owned and
controlled businesses for each state agency and educational institution to be
administered on a contract-by-contract basis or on a class-of-contracts basis;
(5) Develop and
maintain a central minority and women's business enterprise certification list
for all state agencies and educational institutions. No business is entitled
to certification under this chapter unless it meets the definition of small
business concern as established by the office. All applications for
certification under this chapter shall be sworn under oath;
(6) Develop, implement,
and operate a system of monitoring compliance with this chapter;
(7) Adopt rules under
chapter 34.05 RCW, the Administrative Procedure Act, governing: (a) Establishment
of agency goals; (b) development and maintenance of a central minority and
women's business enterprise certification program, including a definition of
"small business concern" which shall be consistent with the small
business requirements defined under section 3 of the Small Business Act, 15
U.S.C. Sec. 632, and its implementing regulations as guidance; (c) procedures
for monitoring and enforcing compliance with goals, regulations, contract
provisions, and this chapter; ((and)) (d) utilization of standard
clauses by state agencies and educational institutions, as specified in RCW
39.19.050; and (e) determination of an agency's or educational institution's
goal attainment consistent with the limitations of section 6 of this act;
(8) Submit an annual
report to the governor and the legislature outlining the progress in
implementing this chapter;
(9) Investigate
complaints of violations of this chapter with the assistance of the involved
agency or educational institution; and
(10) Cooperate and act
jointly or by division of labor with the United States or other states, and
with political subdivisions of the state of Washington and their respective
minority, socially and economically disadvantaged and women business enterprise
programs to carry out the purposes of this chapter. However, the power which
may be exercised by the office under this subsection permits investigation and
imposition of sanctions only if the investigation relates to a possible
violation of chapter 39.19 RCW, and not to violation of local ordinances,
rules, regulations, however denominated, adopted by political subdivisions of
the state.
NEW SECTION. Sec.
6. For purposes of measuring
an agency's or educational institution's goal attainment, any regulations
adopted under RCW 39.19.030(7)(e) must provide that if a certified minority and
women's business enterprise is a broker of goods or materials required under a
contract, the contracting agency or educational institution may count only the
dollar value of the fee or commission charged and not the value of goods or
materials provided. The contracting agency or educational institution may, at
its discretion, fix the dollar value of the fee or commission charged at either
the actual dollar value of the fee or commission charged or at a standard
percentage of the total value of the brokered goods, which percentage must
reflect the fees or commissions generally paid to brokers for providing such
services.
